M.C.Agarwal, J. - (1.) BY this petition under Article 226 of the Constitution of India, the petitioner challenges an order dated March 22, 1996, a copy of which is annexure "10" to the writ petition passed by the Commissioner of Income-tax, Meerut, in proceedings, purporting to be under Section 264 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), and rejecting an application moved by the petitioner for staying the reassessment proceedings for the assessment years 1984-85, 1985-86, 1986-87, 1987-88 and 1989-90, pending before the Deputy Commissioner of Income-tax, Special Range-II, Ghaziabad.
(2.) I have heard Sri Rakesh Kumar Agarwal, learned counsel for the petitioner, and Sri Ashok Kumar, learned counsel for the respondents. The petitioner carries on the business of manufacture and sale of tin container and agriculture implements. Its assessments for the aforesaid assessment years were duly made under Section 143 of the Act. Subsequently, the Central excise authority conducted a search and seizure operation against the petitioner and recovered documents which showed that the petitioner had sought import licences for much larger quantity of raw materials than the quantity shown in the books of account as having been purchased and used for the manufacture of goods. When this information was conveyed by the Central excise authority to the income-tax authorities, the Assistant Commissioner of Income-tax, Investigation Circle, Ghaziabad, issued a detailed notice, dated September 22, 1993, a copy of which is annexure "2" to the writ petition mentioning the relevant details and requiring the assessee-petitioner to show cause why action under Section 147 of the Act may not be taken and notice under Section 148 may not be issued. The petitioner sent a reply dated November 3, 1993, stating that the orders of the excise authorities relevant to the show-cause notice are pending in appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, and that detailed explanation had been made before the excise authorities and requested the Assessing Officer to keep the reassessment proceedings under Section 147 of the Act in abeyance till the decision of the Appellate Tribunal. The petitioner has not disclosed when the aforesaid reply was actually delivered to the Assessing Officer. The Assessing Officer issued notices under Section 148 of the Act, copies of which are cumulatively marked as annexure "4" to the writ petition. The notice for the assessment year 1989-90 was issued on November 8, 1993, and served on November 9, 1993. The other notices are dated January 21, 1994, and were served on January 29, 1994. The petitioner came to this court in Writ Petition No. 1193 of 1995, which was disposed of by order dated December 22, 1995. The relevant portion of the order passed by this court is as under : "Therefore, the Assistant Commissioner of Income-tax, Investigation Circle, Ghaziabad, issued a show-cause notice, dated September 22, 1993 (annexure '4' to the writ petition), pursuant to the said show-cause notice, the petitioner filed a reply, dated November 3, 1993 (annexure '5' to the writ petition), stating that the detailed explanation about discrepancies had been made before the CEGAT. No more details were given by the petitioner in the said reply. The case of the petitioner before us is that no inference could be drawn on the basis of Form 'A', recovered from its business premises by the Excise Department during the raid, because in those forms inflated figures with a view to importing larger quantity, more quantity was mentioned. Counsel for the petitioner submits before us that the higher figures were mentioned in Form 'A' and import licence were also materials, but actually import was made of much lesser quantity of the raw material under those import licences. It is also submitted by counsel for the petitioner that the details of actual import were not furnished before the income-tax authority, because the detailed explanation was already given to the CEGAT. It is submitted that if an opportunity is afforded now to the petitioner, then the evidence of actual import against the import licence can be given to the income-tax authorities. On these facts, we dispose of this petition finally with the observations that the assessing authority will give an opportunity to the petitioner to adduce evidence to show that much lesser quantity of raw material against the import licence was actually imported and consumed by the petitioner. The petitioner will be called upon by the assessing authority to furnish a detailed reply within two weeks from the date of a certified copy of this order is produced before him by the petitioner, which the petitioner undertakes to produce before him within a week from today. Until a decision by a speaking order on such reply to be furnished by the petitioner, no further proceedings under Section 148 of the Act will be taken against the petitioner pursuant to impugned reasons dated August 21, 1995 (annexure "7" to the writ petition), recorded by the Department." As is evident from the facts mentioned above notices under Section 148 had already been issued and served on the petitioner and the petitioner appears not to have disclosed that fact to the court and obtained the aforesaid order by representing that the proceedings were still at the stage on show-cause notice dated September 22, 1993, while in fact notices under Section 148 had already been served and, therefore, no proceedings under Section 148 was pending. A proceeding under Section 148 consists of the recording of reasons under Sub-section (2) of Section 148 and an issue of notice under Section 148(1). Once this is done, there is nothing which is required to be done under Section 148 and what remains to be done by the Assessing Officer is an assessment under Section 147. Therefore, the petitioner by his own default procured an order from this court that was of no legal consequence because the opportunity to adduce evidence and the recording of a speaking order were necessary only when a final order of assessment was passed in which the assessee's contentions may have been wholly or partially accepted. However, in compliance with the aforesaid order passed by this court, the Deputy Commissioner of Income-tax, Special Range-II, Ghaziabad, to whom the case seems to have been transferred recorded his impression about the material on record and ultimately observed as under : "The above makes it clear that the reply of the assessee is not corroborated by any clinching and convincing evidence. In view of this, I hold that proceedings under Section 148 have been validly taken. The material offered by the assessee and further supporting evidence which may be submitted by the assessee will be examined on merits after giving due opportunity to the assessee during the course of final assessment proceedings."
(3.) THIS note is dated February 5, 1996, a copy of which has been annexed as annexure "7" to the writ petition. The petitioner again came to this court in Writ Petition No. 207 of 1996 branding the note dated February 5, 1996, as an order and this court vide order dated March 8, 1996, ordered as under : "We are of the opinion that the petitioner has an alternative remedy under Section 264 of the Income-tax Act to file a revision before the Commissioner. Hence, we dismiss the writ petition on the ground of alternative remedy. If the petitioner files a stay application along with the revision, the same shall be considered and considered expeditiously." The petitioner then filed a revision petition before the Commissioner of Income-tax, Meerut, and moved an application praying for staying the reassessment proceedings for the aforesaid years. The Commissioner rejected the application observing that under Section 264 of the Act, he has ho power to stay the assessment proceedings. It is against the said order that the petitioner has come to this court.;